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not been ascertained, it is allowed to be set-off on the subject to taxation, on the ground of irregularities in same ground when its value is determined. Warren the assessment and levy of the taxes and the proceedv. Franklin Ins. Co., 104 Mass. 518. This rule applied ings of the sale without the party seeking equitable to a partial as well as to a total loss; and when the relief, shall first pay or tender the taxes which are adamount is ascertained, it may be set-off against the mitted to be due, or just, or which the court finds, amount due on the note. Opinion by ENDICOTT, J.- from the evidence, ought to be paid. 2. Where the Un. Mut. Mar. Ins. Co. v. Howes.

assessment roll has been properly filed with the county DRUNKENNESS-ARREST.-1. The “crime of drunk

clerk, and no claim is made that it is lost, or that it enness," as set forth in the Gen. St. Ch. 165, $ 25, is

can not be produced by the county clerk, Held, not er. “ drunkenness by the voluntary use of intoxicating liq

roneous for the district court to reject evidence tenduor.” It is possible, therefore, that one may be drunk,

ing to prove who made the assessment of the real eswithout being guilty of the offense described. Arrested

tate in controversy. Opinion by HORTON, C. J. Alin a public place, kept in custody till sober, and then

firmed. All the justices concurring.– Hagaman 0. brought before a court of justice, he may be able to

Commrs. of Cloud County. show that the intoxication, which he admits existed, CONSTRUCTION OF LETTER.-Where G. sent to was produced by some other cause or means than the D. a letter of which the following is a copy: voluntary use of intoxicating liquor. If he can do this,

“October 1st, 1873. he is entitled to acquittal and discharge. 2. The right

“Victoria, Ellis County, of an officer to arrest without a warrant, reaches by Stat. “Mr. Dabney-Dear Sir: Please let Mr. Seth and 1876, Ch. 17, the case of any person found in a public family have whatever they may want for their support place in a state of intoxication, and does not depend and I will repay you for the same. on the intoxication having been produced by means

“George Grant." wbich render the intoxicated person guilty of the and therefore D., at the instance of the Seth family, “crime of drunkenness.” The mere fact, therefore, procured a physician to attend the family, and such that one arrrested by an officer, without a warrant physician furnished medicines and medical services to for drunkenness, was acquitted at the trial of the com- the value of $200; Held, in an action brought by D. plaint, is not conclusive evidence that he was not drunk against G. therefor, that D. could not recover upon when arrested, nor that the officer was not in the dis- the authority of the letter for the services and medi. charge of his duty in making the arrest and keeping

cines furnished by the said physician. Opinion by him in custody afterwards as a preliminary to making HORTON, C. J. Reversed. All the justices concurcomplaint against him. Opinion by SOULE, J.-Com.

ring.-Grant v. Dabney. 0. Coughlin.

ENFORCEMENT OF JUDGMENT AFTER A WRIT OF DEFECTIVE HIGHWAY - DUE CARE, CONTRIBU- ERROR IS SUED OUT-CONSTRUCTION OF SEC. 555, TORY NEGLIGENCE.-In an action of tort for injuries CIVIL CODE OF 1868.-A contract in these words: occasioned by an alleged defect in a highway, it ap

• Mr. D., Dear Sir: please let Mr. S. and family have peared that the plaintiff drove his horses and loaded whatever they may want for their support, and I will wagon, upon which himself and wife were riding, out repay you for the same, G.” is not "a contract for the of the traveled part of the highway into a ditch, two payment of money only," within the meaning of secand a half feet deep, containing some six inches of mud

tion 555 of the civil code. Gen. Stat. 739. Therefore, and water. The highway upon which he was traveling where a judgment was rendered in favor of D. and was without a railing, but was constructed twenty-six against G. on such a contract, and G. then took the or twenty-seven feet wide, for the use of carriage

case to the supreme court on petition in error, giving travel, and was, for this entire distance, even, smooth an undertaking as prescribed by section 551 and 554 of and hard. The plaintiff testified that he had the the civil code, (Gen. Stat. 737, 738) D. would have no guidance and control of his horses; that he knew of

authority to give the undertaking prescribed by said the alleged defect, having just been warned by his

section 555, and obtain leave to enforce said judgment. wife, and that he drove so near the edge of the road in

Opinion by VALENTINE, J. Reversed. All the justhe daylight that, in order to prevent going over side

tices concurring.-Grant v. Dabney. ways, he turned his horse square off the bank, receive COVENANTS OF WARRANTY. - C conveys by deed ing the injuries. The plaintiff contended that when he with covenants two certain pieces of land to M. M found himself so near the edge of the bank, he could conveyed one of said pieces of land to H. H was afternot stop without going off, and that he was obliged wards evicted. H then sued on the covenants. either to run into an approaching wagon, or turn off as The deed from C to M expressed a consideration of he did. Held, that the plaintiff's position, so near the $575. On the trial it was shown that $375 thereof was bank, was through his own want of due care, for which for the piece of land conveyed to H, and $200 thereof no excuse is shown. A party can not relieve himself was for the other piece of land; but C offered to prove from a dangerous position, into which his own fault has that there was in fact no consideration for said deed, brought him, and hold the town responsible for the re- except a worthless and useless patent right, and that sult. Mayo v. B. & M. R. R., 104 Mass. 137; Gaynor v. H knew it when he purchased his said land. But the 0. C. & N. R. R., 100 Mass. 208. Whether the want of court excluded such evidence. Held, that the court a railing is a defect is not necessary to be considered. committed error; that if C, in fact, received no conOpinion by COLT, J.-Little v. Inhabs. of Brockton. sideration from M, and if H, in fact, knew this at the

time of his said purchase, he can not recover anything

from Con C's covenants. Opinion by VALENTINE, J. ABSTRACT OF DECISIONS OF SUPREME Reversed. All the justices concurring.Clippenger v. COURT OF KANSAS.

Hastings.
July Term, 1877.

FORGED BONDS- IMPLIED WARRANTY — RECOV.

ERY OF PURCHASE MONEY-1. The vendor of certain
HON. ALBERT H. HORTON, Chief Justice.
D. M. VALENTINE, ) Associate Justices.

papers, purporting to be school bonds negotiable on
D. J. BREWER,

their face by the mere act of sale, impliedly warrants

the genuineness of the bonds, and is liable to the INJUNCTION TO RESTRAIN ASSIGNMENT OF TAX vendee, or his assignee, for what he has received from SALE CERTIFICATES.-1. Equity will not, as a rule, in- him with interest, if such pretended bonds are false terfere to restrain by injunction the assignment of tax and forged when delivered, and Held, that an action sale certificates on real estate, where the property is can be maintained for the money paid for such forged

bonds by the vendee against the vendor, without a return, or an offer to return to the vendor, the worthless paper; and, also, Held; that a resale of such forged bonds to a subvendee for a sum in excess of the price paid the vendor is no bar to the recovery of the money paid by the vendee to such vendor, although the money on the resale has not been refunded by the first vendee to the subvendee, Opinion by HORTON, C. J. Valentine, J., concurring. Affirmed. Brewer, J., not sitting.-Smith v. McNair.

to a civil action of libel, the defendant files the defense " that the matters charged as defamatory are true," and no motion is filed to make the answer more specific, no demurrer is presented thereto; no objections are taken on the trial to the proof of the truth of the alleged libelous publication, and the court and all the parties treat the defense as one of justification on the ground of the truth of the publication: Held, that it is too late after the verdict to attack such answer as insufficient as a plea of justification. Atfirmed. Opinion by HORTON, C. J. Valentine J., concurring. Brewer, J., not sitting in this case. Castle v. Houston.

BOOK NOTICES.

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FORECLOSURE OF MORTGAGE ON REAL ESTATEATTORNEY FEES ON CRO88-PETITION-1. Where it appears from a mortgage that certain pieces of real estate, with two mills and “all and singular the hereditaments and appurtenances thereunto belonging,' are mortgaged; and it also appears from the pleadings and admissions of the defendants and mortgagors, that a certain mill-dam and water power are appurtenant to said mills and real estate; and it does not appear whether said dam and water power are situated on said said real estate or not; and the court below renders judgment that said mortgage is a lien upon said dam and water power, as well as upon the real estate, more particularly described in the mortgage; Held, not error. 2. Where M., one of several defendants in a foreclosure suit, sets forth, in his answer, a cause of action on a promissory note and mortgage against L., a co-defendant; Held, that such a thing is, in effect, the bringing of an action on such note and mortgage against such co-defendant; and therefore, where such co-defendant has stipulated in such mortgage to pay an attorney's fee to the holder thereof, for the prosecution of any action that might be brought to recover any amount due on said note and mortgage; Held, that the court, when rendering judgment on said note and mortgage, does not err in also rendering a judgment for an attorney's fee. Opinion by VALENTINE, J.-Affirmed. All the justices concurring. L anone o. McKinnon.

TENNESSEE REPORTS, Vol. 57. Reports of Cases

Argued and Determined in the Supreme Court of Tennessee for the Middle Division, at the Decembet Term, 1872. Edited by JERE BAXTER. Volume 1. Nashville: James Browne. 1878.

This volume contains, so far as we can learn from the preface, the unreported decisions of the Supreme Court of Tennessee, beginning where 9th Heisk. concluded. Within its five hundred and forty pages, over one hundred cases are reported. A table of Tennessee cases cited and an excellent index are also added. The head-notes are clear and comprehensive, the type large and distinct. Without saying more, it is, perhaps, sufficient to remark, that the volume, both in its plan and execution, has been approved by Chancellor Cooper and the State Reporter.

LIBEL – CRIMINAL AND CIVIL PROSECUTIONS PRACTICE-ANSWER.-1. In all criminal prosecutions for libel the truth of the matter charged as libelous is not a full and complete defense, unless it appears that the matters charged were published for public benefit, or in other words, that the alleged libelous matter was published for justifiable ends, but in all such proceedings, the jury, after having received the direction of the court, shall have the right to determine, at their discretion, the law and the fact. 2. In all civil actions of libel, brought by the party claiming to have been defamed, where the defendant alleges and establisiies the truth of the matter charged as defamatory, such defendant is justified in law and exempt from all civil responsibility. In such actions, the jury must receive and accept the direction of the court as to the law. 3. In a civil action prosecuted by a party to recover damages against the publisher of a newspaper for an alleged libel and a plea of justification is filed and thereon evidence of the truth of the matter published is submitted and the court Instructs the jury to the effect that the fact of the language being true is not alone an answer to the charge, but can only be shown in mitigation of damages; that it is not a defense simply to show the truth of the matter published, but the party must go further and show that it was not only true, but that he did it with good motives and for justifiable ends, that he had some purpose in view that was justifiable; that if the defendant acted honestly for good purposes and for justifiable ends and what he said was true then he is to be excused or acquitted; and after a verdict for the plaintiff, on motion of the defendant, the court grants a new trial for misdirection of the jury, Held, not error, as the instructions are not applicable in a civil action. 4. Where in answer

NEW JERSEY EQUITY REPORTS, VOL. 28. Reports of

Cases Decided in the Court of Chancery, the Prerogative Court, and on appeal in the Court of Errors and Appeals of the State of New Jersey. JOHN H. STEWART, Reporter. Vol. I. Trenton, N. J., 1877.

To the equity lawyer this will be a valuable book. The cascs reported here are some of them decided twice-first by the chancellors at the hearing, and secondly by the court of errors and appeals. Consequently, in not a few cases, the opinions of two courts are found in one volume. Many of the cases are of great interest, particularly that of Williamson v. The New Jersey Southern R. R., p. 277, which contains an elaborate and learned review of the nature of rollingstock of a railroad. To the cases of Thomas Iron Co. V. Allentown Mining Co., p. 77, upon the question of the right of the owner of the surface of land to reasonable support as against the worker of an adjoining mine, and his remedy to compel it; Camden Horse R. R. Co. v. Citizens' Coach Co., p. 145 (see 4 Cent. L. J., 410), holding that the public right to use a horse railroad track in the streets of a city for vehicles, incidentally in traveling through the streets, does not authorize a transportation company to use it in competition with the railroad company; Stoudinger v. City of Newark, p. 187 (see 4 Cent. L. J., 410), as to the power of municipal corporations to appropriate to particular purposes land acquired by dedication; Harris v. Betson, p. 211, upon the degree of unsoundness of mind in a testator, which will justify a court of equity in set. ting aside a will made by him; Force v. City of Elizabeth, p. 403, as to when compound interest will and will not be allowed; Lee v. Zabriskie, bearing upon the construction of devises to a man and his wife without further description or condition; Morrow v. Dows, p. 459, as to the lien of taxes upon realty at common law, and under statute; Midland Tunnel & Ferry Co. v. Wilson, upon the jurisdiction of equity to protect ferries, the reporter has appended lengthy and valuable notes. In every respect, his work is worthy of his reputation. The cases reported-about 150 in all-were decided at the different terms during the year 1877.

NOTES.

There can be no doubt at all, that a final tribunal should

give forth no uncertain sound as to the law, and that THE Illinois Supreme Court, at the present term,

the publication of conflicting judgments can only tend substituted the following rule as to appeals for the one

to weaken the authority of the rule laid down, and so in force during the past term: In all cases removed to perpetuate uncertainty and to increase litigation. from the Appellate Courts to this court, by appeal or

Another argument which it uses, comes to us with even writ of error, only so much of the record embracing a more force, viz: that the suppression of dissenting copy of the final judgment or decretal order of the Cir- opinions would reduce the bulk and number of reports cuit Court, with a short statement of the facts found by to a material extent. “We think we speak advisedly," the Appellate Court, and a copy of their final judgment,

it says, “ when we say that the little weight possessed as shall be necessary to clearly and fully present the by decisions of Lower Canada courts is partly owing to question upon which the decision of this court shall be the diverse views entertained and expressed by the sought, shall be made up, and the same shall be di- different judges who take part in the disposition of the rected by at least two of the judges of the court from

case. Much better to suppress the disagreement, and which the record is brought, and their order to that

not to give prominence to it by publishing in extenso effect shall be certified as part of the record. Adopted

all that can be said against the opinion of the majority. January 18, 1878.

As in family matters, if there be disturbances, better not aggravate the trouble by taking the public into your

confidence. When Mr. Justice Maule, according to the At the Illinois State Bar Association dinner, Judge well-known story, gave judgment, after Judge A and Gillespie, one of the few living lawyers who went on Judge B bad just delivered conflicting opinions, by circuit with Lincoln, Douglas, and the other pioneers saying that he agreed with his brother B, for the reaof the Illinois bar, gave some interesting reminiscen- sons given by his brother A, he never intended that the ces of those times. The people used to crowd the views of the court should be published for the benefit court-houses to watch the giants of the profession of the profession, or the confusion of suitors." While contend against each other. Fun was an element that heartily concurring in the opinion of our contempoentered largely into the composition of all forensic rary, it is not a little surprising to find that, in the efforts in that day. Lincoln and Linder would keep American courts, “ it is not the custom to report any judge, jury and audience convulsed with laughter. opinion given by the dissenting judges; the fact that Indeed they could, upon all proper occasions, laugh a such a judge dissents is mentioned, and no more." case out of court. The lawyers then, unquestionably, One need only go away from home in order to learn were more familiar with elementary principles than the manners of his country. they are now. The only books to which the lawyers had access in the early days were elementary. So little was known of reports, that Adolphus Hubbard con

A SUBSCRIBER writes: “Allow me to propound a vinced a jury that Johnson, from whose reports David

question in professional ethics: A is elected judge to Baker had quoted, was a clock pedlar who had peram

preside over several counties. Shortly after A's elecbulated the country gathering up idle rumors, tradi

tion and qualification, B, A's brother, comes from antions and current reports, and published them in a

other state into his brother's district and begins pracbook, which got the name of Johnson's Reports. Hub.

tice, being obliged, as the leading member of the firm, bard asked the jury how Mr. Baker dared to ask them

to appear often before his brother, the judge. Is there to believe Johnson's Reports, when they would scarcely

anything in professional ethics that would render such believe reports gotten up in the same neighborhood.

practice in bad taste? Ought an honest and upright Hubbard, of course, gained his cause before the jury.

judge, in cases of the above kind, where the opposite party or counsel object, to refuse to hear a case, and

ask another judge to preside in his place?” The first HON. ALEXANDER S. JOHNSON, United States Cir- part of this question which, broadly, is, should a relative cuit Judge for the Second Judicial District, comprising of a judge be debarred from practicing in his court, the states of New York, Vermont and Connecticut, is easily answered in the negative, both by common died on January 26, at Nassau, Bahama Islands, of sense and by precedent. If there were any reason for water on the chest. He was born, says the Albany such a rule, tue only safe way would be to adopt a law Law Journal, in Utica, N. Y., July 30, 1817. He went that only one member of a family should be permitted through a course of study at Yale College, and was ad- to enter the legal profession. In England, where nearly mitted to the bar when just 21 years of age. He prac

all law is administered in one city and in one hall, such ticed first in Utica and then in New York. He was a question has never, that we are aware of, been raised. elected Justice of the Supreme Court, at the first Lord Chancellors Bacon and Yorke, Erskine, Coleelection under the Constitution of 1846. In 1851 he ridge, Pollock, Denman and Thesiger, names known was elected to the Court of Appeals. This position he to almost every lawyer on this side of the Atlantic, held for nine years. In 1860 he returned to his were or are sons of judges, and practiced in the courts old home in Utica, and resumed there the prac

in which their fathers sat. To take precedents nearer tice of law. In January, 1873, he was appointed to

home, we need only refer to Canada's first chancellor, the bench of the Commission of Appeals, and in De

Blake, and his son, the present vice-chancellor, Mr. cember of the same year he was appointed Judge of

Justice Field, of the Supreme Court of the United the Court of Appeals. Subsequently, he was appointed

States, and his brother, David Dudley Field, the discommissioner to revise the statutes of New York, tinguished lawyer. As regards the second part of our which position he resigned when he was appointed to correspondent's query, we presume that no lawyer the judicial office he held at the time of his death. He would ask a judge to refer a case to another unless was also one of the Regents of the State University.

he had some reason for believing that he would be inHis rank as a jurist and a man of learning was bigh. fluenced by the relationship. No more injurious at, The opinions delivered by him are esteemed among the

tack than this suggestion of possible partiality could ablest appearing in the reports.

be made upon the integrity of a judge. If he can not administer justice “ without fear, favor or affection,"

he is no longer tit for bis place, and our subscriber can The Canada Law Journal, in its last issue, criticises readily see that he would not be unwarranted in rewith much vigor the custom of publishing, in the offi- senting the intimation that he might possibly violate cial reports, the dissenting opinions of the bench. / his oath.

The Central Law Journal. N.Y 406 ; Ratzky v. People, 29 N. Y. 124;

Knickler v. People, 5 Park Cr. Rep. 212.

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SAINT LOUIS, FEBRUARY 22, 1878.

In English v. Ozburn, 5 Rep. 205, decided CURRENT TOPICS.

by the Supreme Court of Georgia, a rule nisi

to foreclose a mortgage on realty was served The Supreme Court of Missouri, during on defendant January 2, 1877. The next the present term, in State v. Willis, decided a term of the superior court met April 2, 1877. question of great interest to criminal lawyers. The Code, $ 3962, requires service of the The defendant had been convicted of grand rule nisi to be made three months before the larceny, the crime being committed prior to, first day of the next term of court. The trial but the trial not occurring until after an act court held that the three months had not went into effect changing what had been be- elapsed, and set aside the judgment of forefore known as grand larceny into petit larceny closure. On appeal this decision was reversed, and altering the punishment. It was held Jackson, J., saying: In Jones v. Smith, 28 that although an ex post facto law changing the Ga. 41, the rule to count the first day was punishment after the commission of an offense made applicable to months. That case was on can not have any retrospective operation, yet the statute which required certiorari to be sued such a law, dispensing with some separable out within six months “ from and after” the portions of punishment, is in mitigation, and, trial. In Pugh et ux. v. Duke of Leeds, 2 therefore, not unconstitutional. An ex post Cowper, 714, Lord Mansfield discusses the facto law is said to be one " which renders an doctrine at length, and decides that the first day act punishable in a manner in which it was will be counted always in private writings when not punishable when committed."

6 Laws,

so counting it will effectuate and not destroy however, which mitigate the character or pun- the deeds of the parties; that no such techishment of a crime already committed may nical and foolish distinctions as between the not fall within the prohibition, for they are in meaning of “from the date” and “from the favor of the citizen.” 2 Story on Const., $ day of the date,” that had obtained in some 1345, and cases cited. There has been great of the old cases, should be made, but common diversity of opinion as to what in this connec- sense should be applied to ascertain the intention constitutes mitigation. In Texas, it has tion of the parties and get at the justice of been held not to mitigate" the punishment, the case. In that case, he construed the where for the death penalty was substituted words “from the day of the date” to include the infliction of stripes, and this upon the the day of the date in counting when the ground of the peculiarly degrading character lease should begin. 1 Chit. Practice, 766of the latter method of punishment. Herter v. 775 ; 2 Ib. 69; 9 B. & Cross. 603. So here, State, 7 Tex. 69. On the other hand, in we think, the statute should be construed so South Carolina, where the punishment, death, as to carry out the intention of the legislature, was before final judgment changed to fine, as gathered from the entire code, and do jus: whipping and imprisonment, the new law was tice under the law, fairly construed, to the applied in passing sentence. State v. Wil- parties. From the first of one month to the liams, 2 Rich. 418. In Indiana, the law in first of the next month, in common language force punished perjury by not exceeding one and common sense, is always one month; and hundred stripes. In a certain case, before

to count from the second of one month to the trial the punishment was changed to impris

second of the next does not vary the length onment in the penitentiary, not exceeding of time—it is a month still. So from Januseven years, Strong v. State, 1 Blackf. 193; ary 1st to April 1st is three months, and it and this last act was held applicable and not

can make no difference if the count be from obnoxious to constitutional objections. This January 2d to April 2d. If the party was decision has, however, met with criticism from

served on January 2d (fractions of days not Mr. Bishop. 1 Bish. Cr. L., $ 219; Cooley, being counted in such cases), he was, in conCons. Lim. 267. See, also, Hastings v. Peo

templation of law, served at day-break, or ple, 22 N. Y. 217; Shepherd v. People, 25

rather, perhaps, the first minute after twelve Vol. 6. No. 8.

o'clock of the night before; and he had three ruling the Supreme Court of California held calendar months up to day-break of April 2d, that an affidavit made by a ' publisher and or the first minute after twelve o'clock of the proprietor” was sufficient; Sharp v. Daugney, night before. Defendant had all of February 33 Cal. 512. The term editor, as used when and March, thirty days in January, with one the statute of New York was passed, from in April to stand for the 31st of January, which the Oregon law is borrowed, usually inmaking three full months. The rule is simple: cluded not only the person who wrote or selectIn such cases the first day is to be counted,

ed the articles for publication, but the person and from the first or second, or any other day who published the paper or put it in circulaof the month, to the corresponding day of any tion. Webster, in an early edition of his dicsucceeding month, will be computed one, two tionary, gives as one of the definitions of an or three full months, as the case may be. editor, a person who superintends the publi

cation of a newspaper.” It is principally

since that time that the business of an editor A statute of Oregon, similar in this respect

has been separated from that of a publisher to those of other states as to the service of

and printer, and has become an independent process upon absentees, declares that when

profession. service cannot be personally made, and the defendant, after due diligence, cannot be found within the state, and “that fact appears, IN American Trust Society v. Atwater, 30 by affidavit, to the satisfaction of the court or Ohio St. 77, the Supreme Court Commission judge thereof, and it, in like manner, appears of Ohio held that a bequest of a certain fund to that a cause of action exists against the de- trustees, to apply it “ for the interest of relifendant, or that he is a proper party to an ac- gion, and for the advancement of the kingdom tion relating to real property in the state, such of Christ in the world, as follows,” naming court or judge may grant an order that the certain religious societies, is not void for unservice be made by publication of summons certainty. In Chamberlain v. Stearns, 111

when the defendant is not a resi- Mass. 267, a devise for “benevolent” purdent of the state but has property therein and poses was held void, because too general in its the court has jurisdiction of the subject of the meaning. In Holland v. Peck, 2 Iredell Eq. action”—the order to designate a newspaper 255, executors were directed to “pay over and of the county where the action is commenced deliver, for the benefit of the Methodist Episin which the publication shall be made--and copal Church in America,” the sum of $5,000, that proof of such publication shall be the

“to be disposed of by conference, or the differaffidavit of the printer, or his foreman, or his ent members composing the same, as they shall principal clerk.” In Pennoyer v. Nef', re- in their godly wisdom judge will be most excently decided by the Supreme Court of the pedient or beneficial for the increase or prosUnited States, the court in construing this perity of the gospel.” It was held: “The statute hold that defects in the affidavit for

object of the bequest being of so indefinite a the order can only be taken advantage of nature that the court can not determine how it on appeal or by some other direct proceeding, should be employed, the same is void.” In and cannot be urged to impeach the judgment Wisconsin the statute with regard to trusts to collaterally; and that the provision as to proof uses, provides that the trust must be “fully of the publication is satisfied when the affi- expressed and clearly defined on the face of davit is made by the editor of the paper. The the instrument creating it,” which is merely term printer, the court said, is there used not declaratory of the existing law on the subject. to indicate the person who sets up the type; In that state the case of Ruth v. Oberbrunner, he does not usually have a foreman or clerks; 40 Wis. 238, holds that a devise of land to A. it is rather used as synonymous with pub- & B., “to hold the same in trust for the use lisher. The Supreme court of New York so and benefit of the Order of St. Dominican held in one case, observing that, for the pur- and St. Catharine's Female Academy, and for pose of making the required proof, publishers no other purpose,” can not be sustained for were “within the spirit of the statute;' Bunce want of certainty. In Heiss, Ex'ı v. Murphy, v. Reid, 16 Barb. 350. And following this 40 Wis. 276, a will devising the property “to

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